Los Angeles daily herald., 1887-10-15

given OF the sale.
On that day the following parties were
present at the office of Bicknell q White, to-
wit: Messrs. ]. d. Bicknell, S. N. White,
the plaintiff Davis, the Defendants Smith,
Mastfck, Byrne and George Irvine, and
Messrs. Carpenter, Williamson, Bulla as
| stenographer. J. De Barth Shorb and Judge
| A. Brunson.
The trustees had slready prepared but not
| then signed another notice or offer, which In
| substance is as follows:
The following property in Los Angeles
| county, California. is now offered for sale by
the undersigned as trustees OF the James IT.
| vine trust"
| (Here follows description of the prop
erty.)
| s. 300, 900 wonld be entertrined; that on
the acceptance of any offer the bidder should
give to the trustees a certified check for
$50, 900, to be applied on the purchase price
or retained by the trustees as hquldatea
damages if the bidder tailed 10 comPl!eiIe P!.Ie
were to be made within twenty days OF that
date, and all the purchase price to be pald
within sixty days; but the trustees pro-
any amount not exceeding 5000, 900, paya-
| BILE in four years, with interest, etc., and Sc
cured by mortgage; the mortgager to have
| the right to pay at any time after thirty
days notice any amount not less than $780,
600, and to have released from the mort
gage "a pro rata in value OF land"
"The sale is made upon the further CON
dition that the live stock now upon said
ranchos shall remain for ninety days from
the delivery of the deed without charge,
and thereafter during the next ensuing win
ter months at reasonable rates, but so as not
to interfere with the free use of the land by
he purchaser"
Col. Bicknell was requested by the de.
defendant Mastick to act as the Chairman OF
the meeting, or rs one of the witnesses ex-
pressed it, master OF ceremonies. me
evidence was that no one conferred any
power or authority on him other than such
as might be incidental to the positions OF
Chairman of such an assemblage. The
offer as drafted was read or stated by nm,
At the suggestion Of the plaintiff the
written offer was then amended by adding
thereto this clause: "0f the land herein
proposed to be sold there are not less than
loo, 900 acres"
Some discussion then arose as to where the
sale or acceptance OF the bids would be
made.
1t is not very material to determiae who
was the first person to insist upon the thirty
minutes limit; but believe from the evil
de zee it was Mr.. Shorb the plaintiff, how
ever, as he admitted, almost Immediately
seconding the suggestion with the remark
! ~ can do my bidding within thirty minutes
without technicality."
Another clause when then added to the
written offer in these words: THE highest
bidder shall have the property"
The trustees present. speaking through Mr..
Mastick, protested against the thirty min
utes limits, and on the advice of Mr.. Bick-
nell nothing was said of it in the written
offer.
The written offer was then signed by the
| three trustees present; the name of Mrs.
| Irving was signed by Mr.. Byrne and the
name of l.. f. Davis was signed by Mr.. Mas
| tick.
THE BIDS.
Notwithstanding the protest of the Trus-
| tees SO far as expressed in words, the sale
proceeded with the understanding and at
To-. .,.a,t of oil at
bids should be limited to exactly one-half
hours time, and Mr.. Bicknell, taking the
watch handed to him by Mr.. Shorb, but in
the interest OF the same parties represented
by the plaintiff. This was raised by Mr.
Smith, and the bidding was slowly contin-
ued between these two parties until after
great portion of the half hour had expired,
the highest bid stood 81 ,325,OO0
At or about this time the objections to the
thirty minutes limit became more apparent
to the Trustees, and after consultation they
advocated its abrOgation; but as their pro-
tests were met by the counter objections
from one or more of the bidders, they wish
ing to give no offense, whilst protesting that
they would ne'er consent, consented'-at
least tacitly; and the sale proceeded as be-
gun.
At five minutes before the expiration of
the half hour, Mr.. Bicknell announced that
fact, and stated that he would not thereafter
inform the bidders how much time re-
, mained.
i AS had been foreseen by the trustees, the
bidding towards the close of the time liG,-
{ tied became livelier, until Immediately pre-
, ceding and at the close the bids followed
! each other SO rapidly that it was [as stipul-
ated on the trial would be the testimony of
the stenographer) impossible for him to
make any entry or record OF the several
bids. If this were question between any
one of the parties, Davis and Smith, solely
on the one side and the trustees on the
other, might well say that the evidence is
SO conflicting and uncertain considering
that it involves the fractional parts of a sec
ond of time) l should decide the question of
fact against the party on whom the burden
of proof might rest.
Bat under the pleadings, or more espec
tally the argument of the case, and for the
reasons before intimated, ! feel called upon
to decide the relative order in which. tho
closing events of the alleged sale transpired.
Before doing o, however, it may be well
to notice some circumstances appearing in
evidence which greatly increase the diff
Guilty of my reaching any conclusion en-
tirely satisfactory to myself. In the first
plrce the watch which was used by Mr.. .Bick-
nell was not stop watch" or one capable
of marking beyond controversy any exact
second of time, or fractional part thereof.
1t appears also that specsal atten ton was
paid TO the minute-hand OF the watch rather
than TO the secondhand.
The only evidence that "time" was not
called by Mr.. Bicknell erdctly at the right
moment is his own statement to the effect
that there was not sufficient time after the
bid by Smith of 81 $3.50, ,000.O 90 for the plain
tiff within the limit to bid 1885, 900, be-
cause the last bid of Smith was rather after
than before the expiration of the last second
OF the thirty minutes, implying, not as con-
tended by the plaintiff, that Smiths bid was
in fact sfter the expiration of the half hour,
but as infer, that the bid was substantially
made at end on the very last moment; for he
testified land all the parties have conceded
his truth and honestly that he called time"
as nearly as it was possible for him to do so
at the end of the limit, and Smiths bid pre-
ceded the call of time" and plaintiffs bid
followed thereafter.
l, therefore, conclude that the bid of ST.
$4,000 by Smith was within the time, and
that the plaintiffs was, though by an almost
infinitesfmal period of time, made after the
expiration OF the half hour.
As alleged in the pleadings, he made the
mistake in announcing the name of the
purchaser, and also, as alleged, made the
correction.
Each party duly offered his check aud de-
manded conveyance.
The defendant Smith, on the argument,
made some objections to the .sufticiency OF
the check rendered by the plaintiff. / think
that is something which did not concern
him; the trustees were satisfied with it, and
it was SO admitted on the trial.
| 1t appears from the evidence, or if not,
from the words actually spoken, that neither
the plaintiff nor the defendant Smith would
have ceased bidding had the time not been
| limited.
| THE CONCLUSIONS.
Viewing this action as an action either by
! the plaintiff Davis or as eparate and cross
actions by both Davis and the defendant
Smith against the trustees to com perthem
| to specifically perform the alleged contract
| of sale, and to execute a deed, it seems to
me clear that neither would be entitled to a
decree; and in reaching that determination
| it would be immaterial whether the time
was legally limited TO one-half hour or no..
| Taking the written offer for sale and the
bid by either of the parties as sufficient to
| constitute contract so far as agreed upon
yet the contract itself shows that the parties
tation and made the contract so compiete
and certain that Court of Equity will or
can decree its specific performance.
In Section $500 of the Civil Code it is en-
acted: The following obligations cannot
be specifically enforced:
First: X X X Y
Second: X X X X
9th, An agreement the terms of which
are not sufficiently certain to make the pre-